#### Gosser *versus*Hickenlooper.

1. In ejectment the plea is “ not guilty,” made so by act of Assembly.

2. It is unnecessary to plead the death of the plaintiff in abatement; that défence may be given in evidence under the statutory plea, which takes the place-of all others, with few exceptions.

3. Black *v.*Tricker, 2 P. F. Smith. 436; Campbell *v.*Galbraith, 1 Watts, *76;*Patterson *v.*Brindle, 9 Watts, 98, cited.

October —, 1875.

Before Askew, C. J., Sharswood, .Williams, Mercur, Gordon, Paxson, and Woodward,. JJ...

*282Error to the Court of Common Pleas of *'Armstrong Oounty,*of October and November Term, 1875, No. 39.

This was an action of ejectment, brought August 28th, 1869, by William Hickenlooper against William Gosser, for the undivided half of a piece of land, containing 8 acres and 105 perches. The plea was “ not guilty.”

The title to the premises was, on the 15th of May, 1832, in Adam Gahegau, who on that day conveyed them to the plaintiff’, William Hickenlooper and Thomas Hickenlooper, as tenants in common. Thomas Hickenlooper’s interest was sold by the sheriff, June 23d, 1847, to Samuel Kessler; and on the 25th of September, 1858, the executors, etc., of Kessler sold the same interest by order of the Orphans’ Court to Gosser, the defendant.

The case was tried December 19th, 1874, before Painter, P.J.

There was evidence that William Hickenlooper, the plaintiff, had moved away in 1844; also evidence for the purpose of showing that there had been ouster of the plaintiff by .his co-tenant, the defendant.

The' defendant’s first poiut was: That the plaintiff could mot recover without showing an ouster, and of which there was no evidence.

The court answered this point by saying: “The first part of this point is affirmed; the latter part we cannot affirm. There is some evidence from which the jury may infer an ouster. As between tenants in common there must be something more than mere possession or perception of profits and payment -of taxes ; there must be such acts as deny the rights of the -co-tenant. If the defendant enjoys the exclusive possession and otherwise exercises acts of exclusive ownership, the presumption of ouster of the co-tenant would arise, and from the time he would so commence to exercise exclusive control The statute would commence to run. The exhibition of the deed of the treasurer, taken in connection with the evidence of the defendant, that 'he has occupied the property since 1853, is some evidence to go to the jury from which they .may infer ouster.”

The defendant’s third point was: “ If the jury find that William Hickenlooper removed West over seven years ago, :and has never been heard of since, the presumption of law is that William Hiekenlooper is dead, and this action cannot be maintained in his name.”

Answer: “ This point is refused. Although in Pennsylvania the presumption of death arises after an absence of :.seven years (in some cases), the act of Assembly provides That in all actions of ejectment the death of either party does *283not abate the suit, and the personal representatives, or the person or persons next in interest, may be substituted. Since the passage of this act it is incumbent upon the party alleging the death to give evidence of the fact and suggest the death, in which case the substitution will be made by the court.”

The verdict was for the plaintiff.

The defendant took out a writ of error, and assigned the answers to his points for error.

*F. 8.*Golden, for plaintiff in error,

cited Patterson *v.*Brindle, 9 Watts, 98*;*Black *v.*Tricker, 2 P. F. Smith, 436.

*F. Meehling*and *D.*Phelps, for defendant in error.

Judgment was entered in the Supreme Court, November 4th, 1875.

Per Curiam :

In ejectment the plea is not guilty, made so by the act of Assembly, hence it is unnecessary to plead the death of a plaintiff in abatement, but the defence may be given in evidence under the statutory plea, which takes the place of all others, with a few exceptions, perhaps, as intimated in one of the cases, though not decided. The rule as to pleading in ejectment is clearly stated in Patterson *v.*Brindle, 9 Watts, 98, to which may be added Campbell *v.*Galbraith, 1 Watts, 76, and Black *v.*Tricker, 2 P. F. Smith, 436. But there was no evidence that the plaintiff had not been heard from for seven years, or from which an implication of his death would arise. A majority of the judges are of opinion that there was sufficient evidence of an ouster to go to the jury.

Judgment affirmed.